Citation Nr: 0607063
Decision Date: 03/10/06 Archive Date: 03/23/06
DOCKET NO. 98-13 784 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUE
Entitlement to an evaluation in excess of 50 percent for
anxiety disorder with conversion disorder, after March 30,
2000.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
B. Wilson, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1976 to February
1984.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 1998 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Newark, New Jersey, which denied an increased rating from 10
percent.
The veteran appeared before the undersigned Veterans Law
Judge in a hearing in Newark, New Jersey, in September 2002,
to present testimony on the issue on appeal. The hearing
transcript has been associated with the claims file.
In January 2005, the Board denied an increased evaluation
from 10 percent for the veteran's service-connected
disability prior to March 2000; however, it granted a 50
percent evaluation, effective as of that March date. The
veteran appealed this decision to the United States Court of
Appeals for Veterans Claims (Court). By order dated in
November 2005, the Court granted the parties' Joint Motion to
Vacate in Part and Remand, whereby vacating the portion of
the Board's decision which denied an evaluation in excess of
50 percent from March 2000, and remanding the claim for
readjudication. It is noted that the Court dismissed the
veteran's appeal with respect to the rating assigned prior to
March 2000.
FINDINGS OF FACT
1. The veteran's anxiety disorder with conversion disorder
is manifested by occupational and social impairment with
reduced reliability due to disturbances of motivation and
mood, to include depression and anxiety with panic attacks,
and difficulty in establishing and maintaining effective
relationships at his work and within his social sphere.
2. The record does not demonstrate that the veteran has ever
experienced suicidal ideation, obsessional rituals which
interfere with routine activities, impaired impulse control,
spatial disorientation, neglect of personal appearance and
hygiene, or other symptoms on a par with the level of
severity exemplified in these manifestations.
CONCLUSION OF LAW
The criteria for a rating in excess of 50 percent for the
veteran's anxiety disorder with conversion disorder have not
been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.
§§ 4.1-4.14, 4.21, 4.126, 4.130, Diagnostic Code 9424-9400
(2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans' Claims Assistance Act
The Court has held that notice under the Veterans' Claims
Assistance Act (VCAA), as required by 38 U.S.C. § 5103(a) and
38 C.F.R. § 3.159(b), must be provided to a claimant before
the initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim for VA benefits. Pelegrini v. Principi,
18 Vet. App. 112 (2004) (Pelegrini II). The VCAA was enacted
in November 2000.
In the present case, the issue on appeal arises from a claim
for an increased evaluation for a psychiatric disorder. In
this context, the Board notes that a substantially complete
application was received in September 1997, prior to the
enactment of the VCAA. In June 1998, the AOJ issued a rating
decision denying an increase. The veteran filed a timely
appeal, and the claim was certified to the Board. The Board
remanded the claim in August 2003. Prior to the
recertification of the claim to the Board, the Appeals
Management Center (AMC) provided notice to the veteran
regarding the VA's duties to notify and assist.
Specifically, in April 2004, the AMC notified the claimant of
information and evidence necessary to substantiate the claim
for an increased evaluation; information and evidence that VA
would seek to provide; and information and evidence that the
veteran was expected to provide. The veteran was instructed
to send in any additional evidence that pertained to his
appeal. In May 2004, the AMC readjudicated the claim based
on all the evidence, without taint from prior adjudications.
Therefore, the Board finds no prejudice in the fact that the
initial AOJ denial pre-dated VCAA-compliant notice.
Accordingly, the Board finds that the content and timing of
the April 2004 notice comport with the requirements of
§ 5103(a) and § 3.159(b).
Regarding the duty to assist, the Board finds that VA has
done everything reasonably possible to assist the veteran
with respect to his claim for benefits. All identified and
relevant treatment records have been retrieved. The veteran
has been examined in conjunction with his claim. The Board
also observes that in December 2005, after the Court remanded
the veteran's claim, the Board notified him of his right to
submit additional evidence within 90 days. The veteran
replied in writing in the same month, indicating that he had
nothing further to submit. Thus, the Board finds that the
veteran has had ample opportunity to make his case. In the
circumstances of this case, additional efforts to assist him
in accordance with the VCAA would serve no useful purpose.
See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis
v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied its
duties to inform and assist the veteran.
Disability Evaluations
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities (Schedule), which is
based on average impairment of earning capacity. Separate
diagnostic codes identify the various disabilities. 38
U.S.C.A
§ 1155; 38 C.F.R. Part 4. In view of the number of atypical
instances, it is not expected, especially with the more fully
described grades of disabilities, that all cases will show
all the findings specified. 38 C.F.R. § 4.21. When a
question arises as to which of two ratings applies under a
particular diagnostic code (DC), the higher evaluation is
assigned if the disability more nearly approximates the
criteria for the higher rating; otherwise, the lower rating
will be assigned. 38 C.F.R. § 4.7. After careful
consideration of the evidence, any reasonable doubt remaining
is resolved in favor of the veteran. 38 C.F.R. § 4.3.
When rating the veteran's service-connected disability, the
entire medical history must be borne in mind. Schafrath v.
Derwinski, 1 Vet. App. 589 (1991). However, the current
level of disability is of primary concern in a claim for an
increased rating; and the more recent evidence is generally
the most relevant in such a claim, as it provides the most
accurate picture of the current severity of the disability.
Francisco v. Brown, 7 Vet. App. 55 (1994).
Service connection was established for conversion reaction in
April 1984 and was evaluated as 10 percent disabling. In
June 1998, the disability was recharacterized as anxiety
disorder, conversion. In May 2000, the disability was termed
anxiety disorder and the evaluation was increased to 30
percent disabling (effective March 30, 2000). In April 2004,
the disability was termed anxiety disorder with conversion
disorder. The Board established a 50 percent rating,
effective March 30, 2000, by its January 2005 decision.
Under the rating criteria for anxiety and conversion
disorders, which are rated generally under mental disorders,
a 50 percent rating is warranted where the disorder is
manifested by occupational and social impairment with reduced
reliability and productivity due to such symptoms as
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short- and long-term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; and difficulty in establishing and
maintaining effective work and social relationships. 38
C.F.R. § 4.130, DC 9424-9400.
A 70 percent rating is warranted where the disorder is
manifested by occupational and social impairment, with
deficiencies in most areas, such as work, school, family
relations, judgment, thinking, or mood, due to such symptoms
as suicidal ideation; obsessional rituals which interfere
with routine activities; speech intermittently illogical,
obscure, or irrelevant; near-continuous panic or depression
affecting the ability to function independently,
appropriately and effectively; impaired impulse control (such
as unprovoked irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a work like setting); inability to establish and
maintain effective relationships. Id.
A 100 percent disability rating requires total occupational
and social impairment, due to such symptoms as gross
impairment in thought processes or communication; persistent
delusions or hallucinations; grossly inappropriate behavior;
persistent danger of hurting self or others; intermittent
inability to perform activities of daily living (including
maintenance of minimal personal hygiene); disorientation to
time or place; memory loss for names of close relatives, own
occupation or own name. Id.
The facts of this case have not changed since the Board's
January 2005 decision. In March 2000, the veteran underwent
a VA mental disorder examination. He stated at the outset of
the exam that he had run out of his prescription for Zoloft
and so had not been on his medication for some time. He
reported that his nervous symptoms had increased in severity,
and that he suffers from persistent sensations of anxiety and
depression. He said he had been feeling persistently
fatigued, getting only three to four hours of restless sleep
before waking. He had lost time at work because of his lack
of sleep. He also was experiencing difficulty in
concentrating. He was resentful of his supervisors because
he believed they were staring at him because of his twitches
and blinking. It embarrassed him, so he began to avoid
contact with them, as well as with his co-workers. He
reported having no other social contacts. His marriage was
marked by tension due to his lack of sexual motivation and
social withdrawal. He suffered from near-constant headaches
and facial twitches.
Upon examination, the veteran had several days of beard
growth and wore shaded glasses to avoid eye contact.
Psychomotor activity was reduced. He was tense,
apprehensive, and irritable. His palms were moist. Speech
productions were short and non-spontaneous, with low voice
amplitude. His affect was constricted; his mood was
depressed. There was no evidence of perceptual distortions.
Memory was in tact. There was no cognitive deficit, nor
suicidal or homicidal ideation. Insight was poor. Judgment
was adequate for VA rating purposes. The diagnosis noted was
anxiety disorder, with conversion features, manifested by
apprehensiveness, recurrent tension headaches, and facial
twitches. Also noted was depressive disorder, with paranoid
features, manifested by impaired sleep, impaired
concentration, low self-esteem, social withdrawal, impaired
ability or motivation to pursue pleasurable activity, loss of
interest in family involvement, and loss of sexual
motivation. The examiner noted that the veteran's job
performance had significantly declined, with a loss of work
time, social withdrawal, impaired sleep, and persistent
feelings of anxiety and depression.
In May 2000, the veteran underwent psychiatric evaluation.
As per medical history, it was reported that the veteran had
been treated for major depression, with fair results. The
veteran reported being hospitalized for one night after
having taken all of his medication before going to work. He
felt dizzy and anxious. He was observed overnight and
released. The veteran claimed to have good days and bad
days, but was still highly motivated to continue treatment.
It was noted that the veteran had no gross thought disorder,
nor overt symptoms of psychosis. There was no suicidal or
homicidal ideation. He had good impulse control, abstracting
and calculating abilities, and past and recent memory. His
medications were continued.
The veteran appeared before the undersigned Veterans Law
Judge at a Travel Board Hearing in September 2002. At that
time, he testified to an anger problem, with possible violent
tendencies. He reporting having "thoughts of not putting my
family through this again." He also stated that he stays
away from his small daughter if he feels like he is about to
be angry. He would "dose up" on his medication to calm
himself down, though he noted that it calms him to a point
where he does not feel anything. He becomes numb. The
veteran testified to experiencing panic attacks if he comes
home and does not feel something is right. He would "lose
it." This is when he tends to isolate himself in his
basement. He stated that he was afraid he would harm someone
if he did not isolate himself at those times. He reported
also that he has nightmares about his service, and in
particular the incident in which he was electrocuted. He now
avoids circuit breakers and other electrical devices. He
testified to taking medication not just for anxiety, but also
for his twitches and eye blinking.
Outpatient treatment reports document the veteran's on-going
treatment for his anxiety and other disorders. Notably, in
May 2002, the veteran's eye blinking was related to his
anxiety, rather than to blepharospasm. There was dramatic
improvement with medication. In December 2002, the veteran
was noted to be having good results on his anxiety problem
with his medication.
In March 2003, the veteran reported to his regular follow-up
visit, describing increasing problems at work with his
supervisors which he related as due to his many medical
conditions, to include a low back disorder with associated
neuropathy and a right leg and foot disorder. He was noted
to have depressive symptoms, such as an inability to
concentrate, and was anxious and irritable. The examiner
specifically noted that the veteran had no gross thought
disorder, nor overt symptoms of psychosis. He had good
impulse control, as well as good abstracting, and calculating
abilities. Both his memory for the past and for recent
events were good. Judgment and insight were intact. His
Global Assessment of Functioning (GAF) score was 41,
indicative of serious impairment in social and occupational
functioning.
On the same day in March 2003 that he was seen in the
outpatient clinic, the veteran also underwent an initial
post-traumatic stress disorder examination. The veteran
relayed his history of having been electrocuted while in
service. In stating his history, he offered only that he had
been treated for panic attacks and that he was currently on
medication. There was no history of suicidal behavior or
hallucinations. The veteran reported having few close
friends and feeling distant from his family.
Upon examination, he was dressed casually and was
cooperative. His mood was neutral and his affect blunted.
Thought processes were noted to be normal. Insight and
judgment were fair, as was impulse control. The examiner
noted that the veteran was not working because of stated foot
problems, but was going to go back when those problems were
resolved. Additionally, the examiner noted that the veteran
was somewhat isolative. The diagnoses were post-traumatic
stress disorder and tension headaches. The veteran's GAF was
50, still indicative of serious impairment in social and
occupational functioning.
To review, the issue before the Board is whether the
veteran's disability picture warrants an evaluation greater
than 50 percent, from March 2000 forward. In the October
2005 Joint Motion to Vacate and Remand, the parties argued
that any discussion of the veteran's rating must include the
two GAF scores of record. The parties also pointed to the
Board's use of the list of examples in the regulations for
the 70 percent rating in denying the same, specifically
taking issue with whether the veteran had "deficiencies in
most areas" apart from that list of examples, sufficient to
warrant the higher rating.
With respect to the first issue, the veteran's GAF scores of
record, particularly a 41 and a 50 on the same day in March
2003, without question reflect the seriousness of his
psychiatric disability. The diagnostic criteria in the DSM-
IV specifically state that GAF scores between 41 and 50 are
indicative of "serious symptoms (e.g., suicidal ideation,
severe obsessional rituals, frequent shoplifting) OR any
serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job)." The
Board observes that a GAF score involving such "serious
symptoms" encompasses a wide range of symptomatology. The
Board also observes that this range includes those symptoms
held as examples in the Schedule in both the 50 and 70
percent categories. Suicidal ideation and severe obsessional
rituals are listed specifically at the 70 percent level,
while any serious social or occupational impairment, such as
having no friends or being unable to keep a job, is
contemplated in the 50 percent level. Thus, the Board cannot
conclude that a GAF score within the range of "serious
symptoms" will automatically result in a 70 percent (or
higher) rating. A more nuanced analysis is required;
therefore, the veteran's GAF scores will be discussed in the
context of the balance of the evidence below.
With respect to the parties' second issue, regarding having
"deficiencies in most areas," the Board is well aware of
the case law that stands for the proposition that the "such
symptoms as" language of the diagnostic codes for mental
disorders in 38 C.F.R. § 4.130 means "for example" and does
not represent an exhaustive list of symptoms that must be
found before granting the rating of that category. See
Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However,
as the Court also pointed out in that case, "[w]ithout those
examples, differentiating a 30% evaluation from a 50%
evaluation would be extremely ambiguous." Id. The Court
went on to state that the list of examples "provides
guidance as to the severity of symptoms contemplated for each
rating." Id. Accordingly, while each of the examples needs
not be proven in any one case, the particular symptoms must
be analyzed in light of those given examples. Put another
way, the severity represented by those examples may not be
ignored.
There is no doubt that the veteran's disability is manifested
by occupational impairment with reduced reliability. The
veteran has felt it necessary to take off a significant
amount of time from work because of his desire not to
interact with anyone there. He mainly avoids contact with
his supervisors and co-workers because he feels resentful
toward them when they look at him. He was asked to resign as
shop steward because of his behavior.
The veteran's disability is also manifested by social
impairment, in that he has difficulty in establishing and
maintaining effective relationships. He used to enjoy
activities such as dancing, but no longer participates in
such things. He and his wife have stated that they have lost
friends because of his inability to be around other people.
The family unit has suffered as well, with both the veteran
and his wife reporting problems with intimacy in their
relationship. She has stated that he sometimes gets angry
with her when she tries to help him. He often avoids his
youngest daughter when he feels he is getting angry.
Furthermore, the veteran experiences disturbances of
motivation and mood. His mood and affect are variously
described as neutral, blunted, depressed, irritable, and
anxious. His wife reports he has mood swings between extreme
highs and extreme lows, which are often unprovoked and
unexpected. He experiences panic attacks, feeling as if
"something is not right" and that he may "lose it." He
often isolates himself in the basement or stays in bed for
extended periods of time to avoid interpersonal contact.
The veteran conclusively has impairments in most areas of his
life, such as work, family relations, and mood. However, the
medical evidence of record does not suggest that the
veteran's impairments are due to symptoms of similar severity
as those listed in the 70 percent category, as the regulation
requires. While he has had serious impairment indicative of
GAF scores of 41 and 50, his symptoms have not been on par
with suicidal ideation, severe obsessional rituals. His
serious impairment seems to be in terms of social and
occupational functioning, and particularly in his inability
to maintain relationships with friends or coworkers.
Specifically, though the veteran has testified to having
violent thoughts, any such thoughts have not been documented
to have materialized into actual impaired impulse control on
the level of suicidal or homicidal ideations. He continues
to live with his wife of 20 years, without reported incident.
Furthermore, while the veteran carries diagnoses of anxiety
disorder and depressive disorder, when mentioned in the
outpatient records, he is noted to be on medication with good
results. His thought processes have been noted consistently
to be appropriate and without defect.
In sum, the veteran's service-connected psychiatric
disability primarily manifests itself by symptoms of
irritability and isolationism, which result in the
occupational and social impairment contemplated by the 50
percent rating category. Particularly using the examples
listed in the higher classes of ratings as a guideline, the
Board concludes that the veteran's disability picture does
not more nearly approximate that contemplated in either the
70 or 100 percent categories.
The Board also has considered whether the record raises the
matter of an extraschedular rating under 38 C.F.R. §
3.321(b)(1). 38 C.F.R. § 3.321(b)(1) applies when the rating
schedule is inadequate to compensate for the average
impairment of earning capacity for a particular disability.
There is no competent evidence that the disability at issue
causes marked interference with employment or requires
frequent hospitalizations or otherwise produces unrecognized
impairment suggesting extraschedular consideration is
indicated.
(CONTINUED ON NEXT PAGE)
ORDER
Entitlement to an evaluation greater than 50 percent for
anxiety disorder with conversion disorder is denied.
____________________________________________
J. E. Day
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs